Chap. 374.—An ACT to amend and re-enact section 28 of chapter 407 of the
acts of the general assembly of 1924, page 593, approvea March 20, 1924,
concerning intoxicating liquors, as amended in chapter 231 of the acts o!
the general assembiy of 1926, page 417, approved March 23, 1926. [S B 16%]

Approved March 22, 1928

1. Be it enacted by the general assembly of Virginia, That section
twenty-eight of chapter four hundred and seven of the acts of the
general assembly of nineteen hundred and twenty-four, page five hun-
dred and ninety-three, approved March twentieth, nineteen hun-
dred and twenty-four, as amended in chapter two hundred and thirty-
one of the acts of the general assembly of nineteen hundred and twentv-
six, page four hundred and seventeen, approved March twenty-third.
nineteen hundred and twenty-six, be amended and re-enacted so as to
read as follows:

Section 28. (a) Where any officer charged with the enforcement
of the prohibition laws of this State, shall have reason to believe that
ardent spirits are, contrary to law, in any conveyance of any kind,
either on land or on water (except conveyance owned or operated by
a railroad, express, sleeping or parlor car or steamboat company, other
than barges, tugs or small craft), it shall be the duty of such officer to
search such conveyance, and if ardent spirits be found therein, con-
trary to the provisions of this act, he shall seize the same. and shall
also seize and take possession of such conveyance. and the team 11 it
be drawn by a team, and deliver the same and the ardent spirits so
seized, to the sheriff of the county, or the sergeant of the city in which
such seizure was made, taking his receipt therefor, in duplicate, and
the said conveyance and other property so seized, shall be deemed
forfeited to the Commonwealth.

(b) The officer making such seizure shall also arrest all persons
found in charge of, or occupying such conveyance, and shall forthwith
make report in writing, of such seizure and arrest, to the attorney
general and to the attorney for the Commonwealth for the county or
city in which such seizure and arrest were made, and such attorney for
the Commonwealth shall promptly institute appropriate proceedings
against such persons, for violation of the prohibition laws of this State.

(c) If the conveyance so seized be a motor vehicle required by
the motor vehicle laws of Virginia, to be registered, the attorney for
the Commonwealth shall forthwith notify the director of the division
of motor vehicles, by letter, of such seizure and the motor number of
the vehicle so seized, who shall promptly certify to such attorney for
the Commonwealth, the name and address of the person in whose name
such vehicle is registered, together with the name and address of any
person holding a hen thereon, and the amount thereof; and said
director shall also forthwith notify such registered owner and lienor,
in writing, of the reported seizure, and the county or city wherein such
scizure was made.

The certificate of said director, concerning such registration and
lien, shall be received in evidence in any proceeding, either civil or
criminal, under any provision of this act, in which such facts may be
material to the issue involved; provided, however, that any failure of
said director to notify such owner and lienor of said seizure, shall not
hinder or delay any such proceeding.

(d) Within ten days after receiving notice of any such seizure, the
attorney for the Commonwealth shall file in the name of the Common-
wealth, an information against the seized property, in the clerk’s office
of the circuit court of the county, or of the corporation court of the
city wherein said seizure was made; and should the attorney for the
Commonwealth, for any reason, fail to file such information within
said time, the same may, at any time thereafter, be filed by the attorney
general, and the proceedings thereon shall be the same as if it had
been filed by the attorney for the Commonwealth.

Such information shall allege the seizure, and set forth in general
terms, the grounds of forfeiture of the seized property, and shall pray
that the same be condemned and sold and the proceeds disposed of
according to law, and that all persons concerned or interested, be
cited to appear and show cause why said property should not be con-
demned and sold to enforce the forfeiture.

The owner of and all persons in any manner then indebted or
liable for the purchase price, said property and any person having a
lien thereon, if they be known to the attorney who files said informa-
tion, shall be made parties defendant thereto, and shall be personally
served with the notice hereinafter provided for, at least ten days
before the day therein specified for the hearing on said information,
if they be residents of this State, and if they be unknown or non-
residents, they shall be deemed sufficiently served by publication of
said notice once a week for two successive weeks, in some newspaper
published in the county or city wherein said information is filed, and
if there be no newspaper published in such county or city, then in some
newspaper having general circulation therein.

Upon the filing of the information, the clerk of the court shall
forthwith make out a notice reciting briefly the filing of the informa-
tion, the object thereof, the seizure of the property and a fair descrip-
tion thereof, and citing the owner thereof and any person having a
lien thereon, as set out in said information, and all other persons
concerned, to appear on a specified day, of the next term of the court,
or before the judge in vacation to show cause why the seized property
should not be condemned and sold; and said clerk, in addition to having
such notice served as aforesaid, shall promptly post a copy thereof
at the front door of the courthouse.

(e) If the owner or lienor of the seized property shall desire to
obtain possession thereof before the hearing on the information filed
against the same, such property shall be appraised by three disinterested
persons, one to be appointed by such owner, or lienor, if he so desire,
one by the clerk of the court and one by the judge, either in term time
or in vacation, by an order entered of record; and the judge may
appoint a person to serve in all such cases, during his pleasure. If the
owner or lienor shall fail to make an appointment, the clerk shall
appoint two of said appraisers. The persons so appointed, or any two
of them, in the event one should fail to appear, shall promptly inspect
and appraise said property, under oath, at its fair cash value, and forth-
with make return thereof in writing, to the clerk’s office, upon the
return of which, the said owner or lienor may give a bond payable to
the Commonwealth of Virginia, in a penalty of double the amount of
the appraised value of said property, with security to be approved
by the clerk, and conditioned for the performance of the final judgment
of the court, on the trial of said information, and with a further con-
dition to the effect that, if upon the hearing on the information, the
judgment of the court be that said property, or such interest and
equity as the owner or lienor may have therein, be forfeited, judgment
may thereupon be entered against the obligors on said bond for the
penalty, without further or other proceedings against them thereon,
to be discharged by the payment of the, appraised value of the property
seized and costs, upon which judgment, execution may issue, on which
the clerk shall endorse, “‘no security to be taken”; upon giving of which
bond, the said property shall be delivered to said owner or lienor.

(f) Any person claiming to be the owner of such seized property,
or to hold a lien thereon, may appear at any time before final judgment,
and be made a party defendant to the information so filed, which
appearance shall be by answer, under oath, in which shall be clearly
set forth, the nature of such defendants’ claim, whether as owner or as
lienor, and if as owner, the right or title by which he claims to be
such owner, and if lienor, the amount and character of his lien, and
the evidence thereof; and in cither case, such answer shall set forth
fully, any reason or cause which such defendant may have to show
against the forfeiture of said property.

(g) If such claimant shall deny that ardent spirits were in such
conveyance at the time of the seizure thereof, contrary to law, and
shall demand a trial by jury, of the issue thus made, the court shall,
under proper instructions, submit the same to a jury of five, to be
selected and empanelled as prescribed by law, and if such jury shall
find on said issue, in favor of such claimant, or if the court, trying
such issue without a jury, shall so find, the judgment of the court
shall be to entirely relieve said property from forfeiture, and no costs
shall be taxed against said claimant.

(h) If, on the other hand, the jury, or the court trying the issue
without a jury, shall find against the claimant, or if it be admitted
by the claimant that said conveyance, at the time of the seizure, con-
tained ardent spirits, nevertheless, 1f it shall appear to the satisfaction
of the court that such claimant, 1f he claim to be the owner, was the
actual bona fide owner of said conveyance at the time of seizure, that
he was ignorant of such illegal use thereof, and that such illegal use
was without his connivance or consent, express or implied, and that
such innocent owner is a resident of the State of Virginia, or of the
District of Columbia, and has perfected his title to the conveyance,
if it be a motor vehicle, prior to its seizure, or within ten days from
the time same was acquired, and such owner a resident of Virginia, in
the office of the division of motor vehicles of the State of Virginia.
The court shall relieve said conveyance from forfeiture and restore
it to such innocent owner upon the payment by him of the costs as
hereinafter provided:

Provided further, that where it is shown to the satisfaction of the
court that the conveyance for the forfeiture of which proceedings have
been instituted was stolen from the person in possession, relief shall be
granted the owner or lienor, either or both, irrespective of the residence
of the owner, and the cost of the proceedings shall be paid by the Com-
monwealth as now provided by law.

(i) If any such claimant be a lienor, and if it shall appear to the
satisfaction of the court that the owner of the conveyance is a resident
of the State of Virginia, or of the District of Columbia, and has per-
fected his title to the conveyance if it be a motor vehicle, prior to its
seizure, or within ten days from the time same was acquired, and such
owner a resident of Virginia, in the office of the division of motor
vehicles of the State of Virginia, and that such lienor was ignorant
of the fact that such conveyance was being used for illegal purposes
when it was so seized; that such illegal use was without such lienor’s
connivance or consent, express or implied; that at the time he acquired
said lien, he did not know, and had no reason to believe or suspect,
that the owner of said conveyance had ever been guilty of, or was
suspected of, violating any prohibition law, or that such owner in-
tended to use, or contemplated using, or pernntting any other person to
use such conveyance for any unlawful purposes, and that he held a
bona fide lien on said property and had perfected the, same in the
manner prescribed by law, prior to such seizure (if such conveyance
be an automobile the memorandum of lien on the certificate of title
issued by the motor vehicle commissioner of Virginia on said auto-
mobile shall make any other recordation of same unnecessary), the
court shall, by an order entered of record establish said lien, upon satis-
factory proof of the amount thereof; and if, in the same proceeding, it
shall be determined that the owner of said seized property was
himself in possession of the same, at the time it was seized, for any
illegal purpose, or that such illegal use was with his knowledge or con-
sent, the forfeiture hereinbefore in this section declared, shall become
final as to any and all interest and equity which the said owner, or
any other person so illegally using the same, may have in such seized
property, which forfeiture shall be entered of record. In which last-
mentioned event, if the lien established is equal or more than the value
of the conveyance, such conveyance shall be delivered to the henor
upon payment of costs; if the lien is less than the value of the con-
veyance, the lienor may have the said conveyance delivered to him
upon the payment of the difference and costs; should the lienor not
demand delivery, as aforesaid, an order shall be made for the sale of
said property by the sheriff of the county, or sergeant of the city, as
the case may be, in the manner prescribed by law, out of the proceeds
of which sale shall be paid, first, the costs as hereinafter specified ; sec-
ond, the payment of the lien, and the residue, if any, shall go to the
literary fund.

Provided, when relief is granted a lienor under such circumstances
that such relief would not have been granted the owner, judgment
shall be entered in favor of the Commonwealth against the owner for
the full value of the conveyance, with actual cost of the proceedings,
and against all others liable to the lienor except a dealer, who, if he
held the lien, would have been entitled to relief as an innocent lienor,
for due amount to the lienor the amount recovered to be applied, first,
to the amount then due the lienor, and the residue to the literary fund.

(j) If, however, no valid lien is established against the seized prop-
erty, and upon the trial of the information, it shall be determined
that the owner thereof was himself using the same, at the time of the
seizure, for an illegal purpose, or that such illegal use was with his
knowledge or consent, the said property shall be completely forfeited
to the Commonwealth, by an order entered of record, in which
event the attorney for the Commonwealth shall forthwith notify the
governor of such forfeiture, giving him a fair description of the for-
feited vehicle. The governor shall have the right to have such vehicle
inspected by such agency as he may appoint for the purpose, and if,
in his judgment the best interest of the State would be served by re-
taining such vehicle for use in some department of the State govern-
ment, he may so retain the same and have it applied to such use; and
the costs of the forfeiture proceeding, including the fee of twenty-five
dollars to the attorney for the Commonwealth and a like fee to the
officer making the seizure, shall be paid by the Commonwealth in the
manner provided by law.

If, however, the governor shall not order the use aforesaid of such
vehicle, he shall promptly notify the attorney for the Commonwealth,
and the vehicle shall be sold by the sheriff or sergeant, as the case may
be, and after payment of the costs as above specified, the residue of the
proceeds shall go to the literary fund.

Every sale authorized by this section shall be for cash and no sale
shall be made until after the publication of the time, place and terms
of sale, once a week, for two successive weeks in a newspaper pub-
lished in the county or city wherein the order of sale is entered, and if
no newspaper 1s published in said county or city, the advertisement as
above required shall be by printed hand bills posted at the front door
of the court of the county, or usual place for posting of publications
in a city, and in not less than five public places in the county and for at
least ten days prior to the day of sale.

(k) In the trial of any such information, the proven presence of
ardent spirits in the seized conveyance, shall be prima facie evidence
that the person or persons in charge of same at the time of seizure,
had knowledge of such fact, and it shall be no sufficient ground of
defense, that such person or persons so charged with using said con-
veyance in violation of law, had not been convicted of such violation.

(1) The proceeding herein termed “information,” shall be inde-
pendent of any proceeding against the owner of the seized property, or
against any other person, for violation of the prohibition laws.

(m) In every such case, the ardent spirits so seized shall be turned
over to the attorney general.

(n) If the seized property, upon the trial of the information, be
entirely relieved from forfeiture, as provided in paragraph (g), the
fees of the attorney for the Commonwealth and the officer making the
seizure and arrest shall be one-half of the amount specified in para-
graph (j), which fees, and all other costs of such proceeding, shall be
paid by the Commonwealth in the manner provided by law; and if such
seized property be relieved from forfeiture as provided in paragraph
(h) the fees of such officers shall likewise be one-half, which fees and
all other costs of the proceeding, shall be taxed against and paid by the
owner as therein provided.

(o) Whether the interest and equity of the owner be forfeited or
not, if a valid lien be established against the seized property, the fees
of the Commonwealth’s attorney and the officer making the seizure
and arrest shall be twelve dollars and fifty cents each.

(p) In all cases, the actual expense incident to the custody of the
seized property, and the expense incident to the sale thereof, including
commissions, shall be taxed as costs.

(q) Where two or more officers unite in, and jointly capture the
seized property and make the arrests in this section mentioned, the
fees hereinbefore provided for making such seizure and arrest, shall
be equally divided between them.